Telegraph's Lynn Barber libel casel will not be heard by jury

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A High Court judge was wrong to decide that the trial of the Daily Telegraph’s long-running libel battle with academic and writer Dr Sarah Thornton should be held with a jury, the Court of Appeal has decided.

The court remitted the case back to Mr Justice Tugendhat following the newspaper’s successful appeal against the jury trial decision yesterday.

Thornton is suing the newspaper over what she claims is a defamatory reference to copy approval in journalist Lynn Barber’s review of her book, Seven Days in the Art World, which appeared in the paper’s Saturday edition on November 1, 2008. She also claims malicious falsehood.

The newspaper pleads honest comment.

There was no application for a jury trial, but Mr Justice Tugendhat ordered trial by jury as part of consensual directions.

But after the decision in Cook v Telegraph Media Group, in which the court declined to exercise its discretion to allow a jury trial when all the relevant factors favoured trial by judge alone, the newspaper made an unsuccessful application for judge-only trial – arguing that no application for a jury trial had been made under Civil Procedure Rules.

The approach taken by the court when it made the direction by consent for a jury trial was understandable, but since then there had been a change in circumstances, namely the decision in Cook, the court decided.

The court also found it was possible the judge had been too focused on the newspaper’s jurisdiction argument and he should have considered the matter more broadly.

It was inconceivable – and it had not been suggested – that the parties had taken steps towards a jury trial, and therefore finality was not an issue.

There was no suggestion by Dr Thornton that there was a special reason why a judge-only trial would be inappropriate or why the instant late appeal would prejudice her. The matter would be remitted to the judge.